Date post: | 27-Jun-2015 |
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Presented by
RECENT MEDIATION INITIATIVES
IN THE FAMILY COURT &
FEDERAL MAGISTRATES COURT
Maurice Edwards, Senior Consultant/Mediator, Watts McCray Lawyers
Family Law Proceedings – Prior to 1976
The Matrimonial Causes Act 1959
Fault was a feature in the grounds for
Divorce which included, for example:
Adultery
Cruelty
Habitual drunkenness
Desertion
Family Law Proceedings – Prior to 1976
• There was extensive use of Private
Investigators.
• Discretion statements were used (not
disclosed to other party).
• Proceedings were adversarial in nature.
• The role for Mediation was limited.
The Family Court of Australia – From 1976
The Family Law Act, 1975 came into
effect on 5 January 1976.
It heralded a new era and featured
‘No Fault’ divorce. The grounds of
divorce was irretrievable breakdown
of marriage based on 12 months
separation.
The Family Court of Australia – From 1976
Registrars appointed to mediate and
conciliate property matters.
• Regulation 96 Conferences (Later Order
24 Conferences and now known as
Conciliation Conferences).
The Family Court of Australia – From 1976
Wigs and gowns were not worn by
Judges.
• An informal approach was adopted.
The Family Court of Australia – From 1976
The new approach to family law was not
universally accepted and was criticised
throughout sections of the community. The
Court faced significant difficulties, in the late
1970’s to mid 1980’s:
Bombings.
Threats.
Loss of life.
The Family Court of Australia – From 1976
Conciliation/Mediation Conferences by Registrars
and the use of family counsellors and other
experts increased the rate of settled matters in the
Family Court.
Less than 20% of all cases in the Family Court ran
to a hearing.
Federal Magistrates Court – 2000
The Federal Magistrates Court was
established by the Federal Magistrates
Act 1999.
The First Federal Magistrates were
appointed in June 2000.
Federal Magistrates Court – 2000
The Courts’ objective was to provide a simple
and accessible alternative to litigation in the
Federal Court of Australia and the Family
Court of Australia and to relieve the workload
of those Courts.
The Court established a Docket Case
Management process to assist in the early
resolution of disputes.
Federal Magistrates Court – 2000
Intentions of the Docket Case Management
System:
A consistency of approach throughout the matter's history.
A Federal Magistrate familiar with the matter would result in a
more efficient management of the matter.
Fewer formal Directions and a reduction of the number of Court
appearances.
Timely identification of matters suitable for Dispute Resolution.
Issues to be identified faster promoting an earlier opportunity for
settlement.
New Family Law Rules 2004 – A Major Revamp
on the 1984 Rules & Regulations
Pre Action procedures – duty for each party to provide
documents prior to proceedings being commenced.
Early Mediation – Case Assessment Conferences with
Registrars at First Return date at Court.
Rules in relation to the use of Single Experts for valuations
of property and business and in relation to parenting
matters, Child Psychologists and Psychiatrists.
Joint Mediation/Conciliation with Registrars and Family
Consultants.
Children’s Cases Project – 2004 - 2006
• The presiding Judge is charged with an active
role in relation to the conduct of the hearing.
• The parties were able to address the Judge
directly in relation to their concerns.
• Family Consultants gave oral reports after
counselling sessions.
• Some technical rules were removed to assist
in achieving a better child focus.
Less Adversarial Trial (LAT) – An Adaption
of the CCP Program
The Judge controls the Hearing process and the
nature of the enquiry.
A Family Consultant is involved as an expert
adviser at the initial stage.
The traditional technical rules of evidence and
detailed procedural requirements are removed.
The Trial was treated as a continuing process from
the day of the first meeting between the Judge.
Mandatory Mediation in Parenting Matters –
Part of the 2006 Amendments
Family Relationship Centres established
Mediators with specific qualifications and
training became Family Dispute Resolution
Practitioners (FDRPs).
FDRPs were authorised to issue S60I
Certificates enabling the parties to
commence Court proceedings.
Early Intervention Unit – 2011
Legal Aid Commission of NSW
An experienced Mediator is available at the
Parramatta Family and Federal Magistrates
Courts to mediate disputes referred by the
Courts or Independent Children’s Lawyer or
Duty Solicitor.
Settlement rates at these mediations currently
hold an 83% success rate.
Plans to extend this mediation service are
being considered.
Private Mediations in Property Matters
Brisbane Pilot Scheme established as a
result of:
• Limited Court resources.
• Insufficient time available for
Conciliation Conferences.
• A preference in having Registrars
undertake other work.
• Potentially better outcomes for
litigants.
Private Mediations in Property Matters
Brisbane Pilot Scheme has been extended to
the Sydney Registry of the Family Court and
Federal Magistrates Court.
Joint project of the Law Society of NSW, the
Family Court, the Federal Magistrates Court
and the NSW Bar Association.
Reduced cost to the litigants.
Mandatory referrals pursuant to S13(C) of the
Family Law Act.
Private Mediations in Property Matters
Section 13(C) of the Family Law Act requires
that:
One or more of the parties to the proceedings
attend Family Counselling;
The parties to the proceedings attend Family
Dispute Resolution;
One or more of the parties to the proceedings
participate in an appropriate course, program
or other service.
The Future of Mediation in Family Law Disputes -
2012 and beyond
Mediation will continue to be a very useful
method to resolve family law disputes.
The Future of Mediation in Family Law Disputes -
2012 and beyond
Possible extension of mediations in property
matters during the course of the Court
proceedings.
Possible expansion of the use of private
mediations in property matters.
Despite the success of mediations, there will
always be a percentage of disputes that
need a judicial decision.
Final
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